ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001499

Complaint for Resolution:

Date of Adjudication Hearing: 29/06/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Summary of Complainant’s Submission:

The complainant received a communication from the Respondent on the 29th July 2015 informing him that his role would be transferred under the Transfer of Undertakings Regulations to another company, the transferee.

The Complainant was surprised by this. Though he was involved in managing the TUPE process it was never indicated that his role would fall within it. Following this he received an email from the Respondent's HR Department on the 30th July 2015 which stated as follows:-“If there are no vacancies in branch that are suitable and you chose not to TUPE transfer to [the transferee] then you would need to resign”.The complainant was surprised and upset by this. In order to ascertain exactly what the position was, he made contact with the transferee to be told that his role did not fall within the transfer which was taking place under the TUPE Regulations. It emerged subsequently that the reason for this was that the respondent had not placed him on the list of those transferring.

The Complainant took legal advice on this issue and it was confirmed to him that legally there was no basis for his transfer under the TUPE Regulations. The Complainant told the his direct line manager/respondent of the discussions which he had with the transferee and indeed the legal advice which he had received to and to other members of the Respondent company.

There were then a number of discussions between the complainant, his direct line manager and other members of the Respondent company during which he was informed that there were no roles available within the company. Indeed this culminated with a prolonged conversation on Thursday 6th August 2015 wherein it was confirmed that the transferee had clarified that the Complainant did not fall under the scope of the transfer taking place and further it was confirmed that there were no other suitable positions available within the company.

In the circumstances and in light of all of the above, the Complainant says he was left with no alternative but to tender his resignation. The Respondent’s actions were entirely unreasonable and further represented a clear breach of contract which left the Complainant’s position untenable. He went to great lengths to address matters internally before tendering his resignation but his efforts were frustrated.

He felt he was left with no alternative but to tender his resignation. The fact of the matter was that it was expressly communicated to the Complainant that he could not transfer to the transferee and that there were no jobs available internally

Respondent’s Submission and Presentation:

The respondent accepts that there was confusion over the complainant’s status in the proposed transfer of undertaking. It believed that the complainant worked overwhelmingly on the contract whose transfer was triggering the transfer of undertakings. The respondent says that the transfer is a matter of law.

It confirms that the complainant was offered the option to transfer, or if he did not agree to do so then to resign.

The confusion was added to by the transferee indicating to the complainant when he enquired that he was not scheduled to transfer at all and was not covered by the terms of the transfer. This appears to have been because the respondent had not listed him among those who were due to transfer

Findings and Conclusions

As outlined above the respondent/transferor in this case provided the transferee with a list of its employees who it believed were due to transfer under TUPE regulations. It appeared that the respondent was not really clear about the volume of the complainant’s work which was associated with the transferring work; at the hearing it said seventy per cent, the complainant’s evidence was that it was a fraction of this, about twelve per cent.

The respondent admitted that there had been failings in the TUPE process and that the complainant had ‘fallen under the radar’. There had been uncertainty about whether he was affected by the process.

When the complainant approached the transferee he was told that he was not a candidate for transfer. It would have been more accurate to say that the respondent, believing that he was a candidate for transfer simply had not put him on the list. But according to the complainant the true position was that he should not have been a candidate for transfer at all.

The responsibility for this confusion lies squarely with the respondent which failed in even an elementary standard of responsibility to its employee. As will be seen below the position for the complainant then got worse.

On July 29^th the respondent concluded that he was ‘within scope’ for transfer, but that if he did not transfer there was no job for him with the respondent.

On July 30^th he was told that if he chose not to transfer ‘then you would need to resign’. This was the point at which the transferee told him his role did not fall within the transfer.

On August 6^th this was confirmed in a conversation with the transferee. This was three days before the transfer was due to be effected. He resigned on that date and did not present for work the following day.

The sequence of events on that day is as follows. At 9.19 the Manager wrote to HR advising of the complainant‘s resignation. HR replied at 9.58 asking the manager to ‘hold fire on accepting this resignation’.

On that same day, at 15.28 following the communication of his resignation the respondent HR Business Partner wrote to the complainant confirming that the transferee still did not see him as a candidate for transfer, and in the context of a possible alternative opportunity in Dublin (the complainant was based in Galway) asking him to reconsider his resignation. This was a friendly and positive letter which looks like it was aimed at trying to help the complainant. It was undoubtedly late in the day but might be seen as a genuine effort by the respondent to mend its hand.

However, when the complainant went to his immediate manager later in the day to hand in various company items, and despite having been copied on the letter just referred to, his manager accepted the items even though he was aware that the company had asked the complainant to reconsider his position.

This followed a second email to that same manager (at 15.02) advising him in clear terms that the complainant was ‘going to consider the role as discussed with him and will get back to me (HR) the following morning’.

The Manager’s failure to dissuade the complainant or even attempt to do so in the light of the company’s apparent efforts to retain him in employment effectively sabotaged those efforts and sent a message to the complainant about their trustworthiness.

On that day, August 7^th the respondent wrote to the complainant, after he failed to present for work stating that they were;

‘incredibly concerned about your whereabouts, but in addition we are unclear of your intentions in regards to ongoing employment with either us or [the transferee] who are in the process of TUPEing your employment, as you are aware.

The letter continued to acknowledge that as he had only

‘recently found out that this impacts your employment you may feel like to need time to consider your options in regards to the transfer.

This might have retrieved the situation in which the respondent had placed him were it not for those conversations he had with his immediate manager preceding his resignation (on August 4^th and 6^th). In his evidence he said that his manager used words to the effect that he had no future in the company.

The bar for a constructive dismissal is set high, as it is for an employer wishing to terminate employment and it is for the same reason. Frequent, and common usage of the term ‘Contract of Employment’ may diminish the fact that it is a contract like any other and the law regards breach of an employment contract as seriously as breach of any contract, by whichever party.

Accordingly that is why the burden of proof that falls on a complainant who has terminated their employment is high.

The primary criterion is that the behaviour of the employer has been so unreasonable as to justify the employee’s action.

The Unfair Dismissals Act speaks of a termination

…in circumstances in which, because of the conduct of the employer, the employee was or would have ben entitled…to terminate the contract of employment without giving prior notice to the employer.      Section 1 Unfair Dismissals Act 1977

I commend the actions of the HR Manager who gave evidence at the hearing and for her attempts to retrieve the situation on August 6^th. However they were too little, too late and were effectively undermined by the manager at local level both by his comments to the complainant on August 4^th and 6^th and his acceptance of the return of company material in defiance of the HR manager’s instruction earlier that same day ‘to hold fire on accepting his resignation’.

While this was some hours after the complainant had resigned it is possible that he might have been dissuaded if all of the available evidence was not contradicting the HR Manager’s good intentions and indicating to the complainant that his future with the company was over.

Add to this the mess that was made of the TUPE preparations and the complainant’s case is further enhanced. It beggars belief that on August 10^th 2015, the day following the transfer of undertakings there was correspondence from the transferee to the respondent requesting an extension of the consultation period in relation to the complainant as apparently suggested by the respondent.

There is evidence of genuine attempts by the respondent to retrieve the situation. Bu the question for the adjudication is whether it was reasonable for the complainant to resign when he did.

The complainant submitted dicta in Joyce v Brother of Charity Services [2009] E.L.R 328 where the reasonableness test was considered by the EAT;

[the Tribunal] must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria the conduct referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the response by the employee’

I find that, on the facts of this case the complainant meets this test comfortably. To create circumstances over a prolonged period where an employee reasonably fears for his security of employment, or that his employment is at risk is the very point the TUPE was enacted to avoid. The complainant’s failure to manage this process with the degree of care necessary was inexcusable.

I am satisfied on the basis of his evidence that his immediate manager at local compounded this in his conversations with the complainant and his actions on the final day confirmed it. They undermined the actions of the HR partner to the point where the complainant could have no confidence in them.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complainant was the subject of an unfair, constructive dismissal and I uphold his complaint.

He has incurred losses as a direct consequence of the dismissal of €2,567 which sum I award him.

Dated:   7^th September 2016